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HomeMy WebLinkAboutUkiah Valley Sanitation District 2011-06-01AGREEMENT AND RELEASE The Ukiah Valley Sanitation District ("District"), a county sanitation district and the City of Ukiah ("City"), a general law municipal corporation, enter this settlement Agreement and General Release ("Agreement") on l , 2011 ("Effective Date") in Ukiah, Mendocino County, California. The City and the District may be referred to herein as "the Parties." RECITALS 1. District has filed an action ("the Action") against the City entitled Ukiah Valley Sanitation District v. City of Ukiah, Mendocino County Superior Court Case No. SCUK CVG 1057183, which alleges that the City breached the Participation Agreement between the District and the City by failing to collect a sewer connection fee from the Mendocino Brewing Company, when the Company connected to the sewer system. 2. The Parties have agreed to settle the claims asserted or which could have been asserted by the District in the Action. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties agree as follows. 2. INCORPORATION OF RECITALS. The Recitals contained in paragraphs 1-2 are incorporated by reference into the body of this Agreement. 3. BINDING EFFECT. This Agreement governs the rights of, binds, and inures to the benefit of each and every party hereto; their respective predecessors and successors; their past, present, and future subsidiaries, affiliates, joint ventures, partnerships, joint venturers, partners, assigns, officers, directors, shareholders, employees, agents, consultants, subcontractors, insurers, 1 sureties, attorneys, administrators, executors, nominees, heirs, and representatives; and all others acting on their behalf or on behalf of any of them. It binds the District and the City. 4. AGREEMENT. On or before June 30, 2011, City shall pay District Three Hundred Thousand Dollars ($300,000). 5. RELEASE OF CLAIMS. In consideration of the performance of paragraph 4 of this Agreement, District absolutely discharges and releases City, and its officers, agents and employees, from any and all claims, demands, damages, debts, liabilities, obligations, costs, expenses, liens, actions, attorney's fees and causes of action in any way connected with City alleged failure to collect a sewer connection fee from the Mendocino Brewing Company, whether any such claim is currently known or unknown, suspected or unsuspected, and whether or not asserted prior to the Effective Date. 6. COVENANT NOT TO SUE. District covenants that within five days after it receives the payment required by paragraph 4 of this Agreement, it will dismiss with prejudice the Action and the related action entitled Ukiah Valley Sanitation District v. City of Ukiah, SC-UK-CV-PT-10-0057215, each party to bear its own attorneys' fees and costs. District agrees that it will not in the future commence or prosecute, or assist in any way in the commencement or prosecution of any claim, demand, or cause of action of any nature whatsoever that is based upon any claim, demand, damage, debt, liability, obligation, cost, expense, lien, action, or cause of action hereby released. 7. WAIVER OF SECTION 1542 OF CALIFORNIA CIVIL CODE. District has considered the possibility that he may not now fully know the number or magnitude of all the claims related to the provision collection of sewer connection fees from the Mendocino Brewing 2 Company prior to the Effective Date that it has or may have had against the CITY, or its officers, agent or employees, but, nevertheless, intends to assume the risk that it is releasing such unknown claims. District agrees that this Agreement is a full and final release of any and all such claims, and expressly waives, as to such claims, the benefits of Sections 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 8. COMPROMISE. It is understood and agreed that this Agreement is the result of a good faith compromise settlement of disputed claims, and that this Agreement and the releases contained herein shall not be taken or construed to be an admission of any liability, responsibility, fault, or wrongdoing by any of the parties hereto. 9. REPRESENTATION BY COUNSEL. This Agreement is entered into freely and voluntarily. The parties hereto acknowledge that they have been represented by counsel of their own choice or had ample opportunity to secure such representation in the negotiations that preceded the execution of this Agreement and in connection with the preparation and execution of this Agreement. Each of the parties hereto executes this Agreement with full knowledge of its significance and with the express intention of effecting its legal consequences. 10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto pertaining to the settlement of the disputes and obligations between the parties. This Agreement supersedes all prior and contemporaneous agreements not specifically identified in this Agreement, and all prior representations and understandings of the parties, which are 3 merged into this Agreement. Each party has made its own independent investigation of the matters settled, has been advised or had ample opportunity to secure advice concerning the terms of this Agreement by counsel of its choice, and is not relying upon any representation not specified herein. 11. ATTORNEYS' FEES. In the event of any dispute between the parties hereto arising out of, or in connection with, the provisions of this Agreement or any documents executed and delivered pursuant to this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs of suit, and necessary disbursements, in addition to whatever damages or other relief said prevailing parry is entitled to in connection with such dispute. 12. APPLICABLE LAW. This Agreement shall be construed under and shall be deemed to be governed by the laws of the State of California, without giving effect to any principles of conflicts of law if such principles would operate to construe this Agreement under the laws of any other jurisdiction. 13. CONSTRUCTION OF AGREEMENT. This Agreement is the product of negotiation and preparation by and among each party hereto and its attorneys. Therefore, the parties acknowledge and agree that this Agreement shall not be deemed to have been prepared or drafted by one party or another, and that it shall be construed accordingly. 14. MODIFICATION OF AGREEMENT. No supplement, modification, waiver or amendment with respect to this Agreement shall be binding unless executed in writing by the party against whom enforcement of such supplement, modification, waiver, or amendment is sought. 15. COUNTERPARTS OF AGREEMENT. This Agreement may be signed in counterparts by the parties hereto and shall be valid and binding on each party as if fully executed all on one copy. 4 16. SIGNATORIES' AUTHORITY. The signatories to this Agreement on behalf of all the parties hereto warrant and represent that they have authority to execute this Agreement and to bind the parties on whose behalf they execute this Agreement. 17. REASONABLE COOPERATION. The parties hereto shall reasonably cooperate with each other, including executing all necessary further documents, if any, to carry out the purpose and intent of this Agreement. 18. EFFECTIVE DATE. The parties hereto deem this Agreement to be signed and of binding legal effect as of the Effective Date. CITY OF UKIAH Chambers, City Manager ATTEST: UKIAH VALLEY SANITATION DISTRICT BY Its: J e Currie, City Clerk Appr ve'd to form Dav apport, Ci /Attorney Approved as to form: JEANINE NADEL, COUNTY COUNSEL By Doug Los9k, Chief Deputy APPROVED AS TO FORM: r RICK KENNEDY, DISTRICT ERK